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No. 87 



SOME DEFECTS IN THE CONSTITUTION 
OF THE UNITED STATES 



ADDRESS 



BY 



HON. WALTER CLARK 

Chief Justice of North Carolina 



TO THE 



LAW DEPARTMENT OF THE UNIVERSITY 
OF PENNSYLVANIA, ON APRIL 27, 1906 




PRESENTED BY MR. OWEN 
July 31, 1911.— Ordered to be printed 



WASHINGTON 
1^1 1 







I 






SOME DEFECTS IN THE CONSTITUTION OF THE 
UNITED STATES. 



M ADDRESS TO THE LAW DEPARTMENT OF THE UNIVERSITY OF PENNSYLVANIA, APRIL 27, 1906. 



By Walter Clark, chief justice of North Carolina. 



Philadelphia is one of the great cities of the world. To the student 
of history who remembers that Nineveh and Palmyra, Carthage 
and Thebes, and many another, have been great, populous, and 
wealthy, and then have passed entirely away from the thoLights 
and lips of men, Philadelphia has yet a glory that shall live always, 
Mohammedanism has its Mecca, the cradle and the acme of its hopes. 
Jew and Christian alike turn to Jerusalem. But to the utmost verge 
of earth, and to the last syllable of recorded time, in whatever lan- 
guage liberty and freedom shall be honored among men, in whatever 
accents government ''of the people, by the people, and for the peo- 
ple" shall be asserted, there Philadelphia shall be remembered as the 
cradle of its birth. Her streets at some far distant day may be 
overgrown with grass and her ruined and tottering buildings may 
become the home of bats and birds of night; but around her name 
will linger a luster that shall never depart. 

Here, on July 4, 1776, was proclaimed " Liberty throughout all the 
land and to all the inhabitants thereof." And here, too, 11 years 
later, was another notable event, when on September 17, 1787, was 
issued to the world the Constitution of these United States. It is 
of the latter — "its defects and the necessity for its revision" — that 
I shall speak to you to-night. 

Just here it is well to call to mind the radical difference between 
these two conventions. That which met in 1776 was frankly demo- 
cratic. Success in its great and perilous undertaking was only pos- 
sible with the support of the people. The great Declaration was an 
appeal to the masses. It declared that all men were created equal 
and endowed with certain inalienable rights — among them life, lib- 
erty, and the pursuit of happiness — to secure which rights govern- 
ments are instituted, deriving their just powers from the consent of 
the governed; and that when government becomes destructive of 
these ends it is the right of the people to alter or abolish it and insti- 
tute a new government in such form as shall seem most likely to 
effect their safety and happiness. Never was the right of revolution 
more clearly asserted or that government existed for the sole bene- 
fit of the people, who were declared to be equal and endowed with 



4 DEFECTS IN CONSTITUTION OF UNITED STATES. 

the right to change their government at will when it did not subserve 
their welfare or obey their wishes. Not a word about property. 
Everything was about the people. The man was more than the dol- 
lar then. And the convention was in earnest. Every member 
signed the Declaration which was unanimously voted. As Dr. 
Franklin pertinently observed, it behooved them ''to hang together, 
or they would hang separately." 

The convention Avliich met in 1787 was as reactionary as the other 
had been revolutionary and democratic. It had its beginning in com- 
mercial negotiations between the States. Wearied with a long war, 
enthusiasm for libert}^ somewhat relaxed by the pressing need to 
earn the comforts and necessities of life whose stores had been 
diminished and o})pressed by the ban upon prosperity caused by the 
uncertainties and impotence of the existing government of the Con- 
federacy, the convention of 17S7 came together. Ignoring the maxim 
that government shovdd exist only by the consent of the governed 
it sat with closed doors that no breath of the popular will should 
alfect their decisions. To free the members from all responsibility, 
members were prohibited to make copies of any resolution or to cor- 
respond with constituents or others about matters jjending before 
the convention. Any record of yeas and nays was forbidden, but 
one was kept without the knowledge of the convention. The journal 
was kept secret, a vote to destroy it fortunately failed, and Mr. 
Madison's copy was published only after the lapse of 49 years, when 
every member had passed beyond human accountability. Only 12 
States were ever represented and one of these withdrew before the 
final result was reached. Of its 65 members, only 55 ever attended, 
and so far from being unanimous, only 39 signed the Constitution, 
and some actively op])osed its ratification by their own States. 

That the Constitution thu? framed was reactionary was a matter 
of course. There was, as we know, some talk of a royal government, 
with Frederick, Duke of York, second son of George the Third, as 
King. Hamilton, whose subsequent great services as Secretary of 
the Treasury have crowned him with a halo, and whose tragic death 
has obliterated the memory of his faults, declared himself in favor 
of the English form of government, with its hereditary Executive 
and its House of Lords, which he denominated "a most noble insti- 
tution." Failing in that, he advocated an Executive elected by 
Congress for life. Senators and judges for life, and governors of States 
to be appointed by the President. Of these he secured, as it has 
proved, the most important from his standpoint, the creation of 
judges for life. The convention was aware that a Constitution on 
Hamilton's lines could not secure ratification by the several States. 
But the Constitution adopted was made as undemocratic as possible, 
and was very far from responding to the condition, laid down in the 
Declaration of 1776, that all governments derive their just powers 
from the consent of the governed. Hamilton, in a speech to the 
convention, stated that the members were agreed that "we need to 
be rescued from the democracy." They were rescued. Thomas 
Jefferson unfortunately was absent as our minister to France and 
took no part in the convention, though we owe largely to him the 
compromise by which the first 10 amendments were agreed to be 
adopted in exchange for ratification by several States which other- 
wise would have been withheld. 



DEFECTS IN CONSTITUTION OF UNITED STATES. 5 

In truth, the consent of the governed was not to be asked. In the 
new government the will of the people was not to control and was 
little to be consulted. Of the three great departments of the Govern- 
ment — legislative, executive, and judiciary — the people were in- 
trusted with the election only of the House of Representatives, to 
wit, only one-sixth of the Government, even if that House had been 
made equal in authority and power with the Senate, which was very 
far from being the case. The Declaration of 1776 was concerned 
with the rights of man. The Convention of 1787 entirely ignored 
them. There was no Bill of Rights and the guaranties of the great 
rights of freedom of speech and of the press, freedom of religion, 
liberty of the people ta assemble, and right of petition, the right to 
bear arms, exemption from soldiers being quartered upon the people, 
exemption from general warrants, the right of trial by jury and a 
grand jury, protection of the law of the land, and protection from 
seizure of private property for other than public use, and then only 
upon just compensation; the prohibition of excessive bail or cruel 
and unusual punishment, and the reservation to the people and the 
States of all rights not granted by the Constitution — all these matters 
of the utmost importance to the rights of the people were omitted, 
and were inserted by the first 10 amendments only because it become 
imperatively necessary to give assurances that such amendments 
would be adopted in order to secure the ratification of the Constitu- 
tion by the several States. 

The Constitution was so far from being deemed satisfactory, even to 
the people and in the circumstances of the time for which it was 
framed, that, as already stated, only 11 States voted for its adoption 
by the convention, and only 39 members out of 55 attending signed 
it, some members subsequently opposing its ratification. Its ratifi- 
cation by the convention in the several States was carried with the 
greatest difficulty, and in no State was it submitted to a vote of the 
people themselves. Massachusetts ratified only after a close vote 
and with a demand for amendments; South Carolina and New Hamp- 
shire also demanded amendments, as also did Virginia and New York, 
both of which voted ratification by the narrowest majorities and 
reserving to themselves the right to withdraw; and two States (North 
Carolina and Rhode Island) rejected the Constitution, and subse- 
quently ratified only after Washington had been elected and inau- 
gurated — matters in which they had thus no share. • 

George Washington was president of the convention, it is true, but 
as such was debarred from sharing in the debates. His services, 
great as they were, had been military, not civil, and he left no impress 
upon the instrument of union, so far as known. Yet it was admitted 
tliat but for his popularity and influence the Constitution would 
have failed of ratification by the several States, especially in Virginia. 
Indeed, but for his great influence the convention would have 
adjourned without putting its final hand to the Constitution, as it 
came very near doing. Even his great influence would not have 
availed but for the overwhelming necessity for some form of govern- 
ment as a substitute for the rickety Articles of Confederation, which 
were utterly inefficient and whose longer retention threatened civil 
war. 

An instrument so framed, adopted with such difficulty and ratified 
after such efforts and by such narrow margins, could not have been 



6 DEFECTS IN CONSTITUTION OF UNITED STATES. 

a fair and full expression of the consent of the governed. The men 
that made it did not deem it perfect. 'Its friends agreed to sundry- 
amendments, 10 in number, which were adopted by the first Con- 
gress that met. The assumption by the new Supreme Court of a 
power not contemplated, even by the framers of the Constitution, to 
drag a State before it as defendant in an action by a citizen of another 
State, caused the enactment of the eleventh amendment. The 
unfortunate method prescribed for the election of President nearly- 
caused a civil war in 1801 and forced the adoption of the twelfth 
amendment, and three others were brought about as the result of 
the great Civil War. The convention of 1787 recognized itself that 
the defects innate in the Constitution, and which would be developed 
by experience and the lapse of time, would require amendments, and 
that instrument prescribed two different methods by which amend- 
ments could be made. 

Our Federal Constitution was adopted nearly a century and a quar- 
ter ago. In that time every State has radically revised its constitution 
and most of them several times. Indeed, the constitution of New 
York requires that the question of a constitutional convention shall 
be submitted to its people at least once every 20 years. The object 
is that the organic law shall keep abreast of the needs and wants of 
the people and shall represent the will and progress of to-day and 
shall not, as is the case with the Federal Constitution, be hampered 
by provisions deemed best by the divided counsels of a small handful 
of men in providing for the wants of the Government considerably 
more than 100 years ago. Had those men been gifted with divine 
foresight and created a Constitution fit for this day and its develop- 
ment, it would have been unsuited for the needs of the times in which 
it was fashioned. 

When the Constitution was adopted, in 1787, it was intended for 
3,000,000 of people, scattered along the Atlantic slope from Massa- 
chusetts to the southern boundary of Georgia. We are now trying 
to make it do duty for very nearly 100,000,000, from Maine to Manila, 
from Panama ancl Porto Rico to the pole. Then our population was 
mostly rural; for three years later, at the First Census, in 1790, "w^e 
had but five towns in the whole Union which had as many as 6,500 
inhabitants each, and only two others had over 4,000. Now we have 
the second largest city on the globe, with over 4,000,000 of inhabit- 
ants, and many that have passed the half-million mark, some of 
them of over a million population. Three years later, in 1790, we 
had 75 post offices, with $37,000 annual post-ofHce expenditures. 
Now we have 75,000 post offices, 35,000 rural-delivery routes, and a 
post-office appropriation of nearly $200,000,000. 

During the first 10 years the total expenditures of the Federal 
Government, including payments on the Revolutionary debts, and 
including even the pensions, averaged $10,000,000 annually. Now 
the expenditures are 75 times as much. When the Constitution 
was adopted Virginia was easily the first State in influence, popula- 
tion, and wealth, having one-fourth the population of the entire 
Union. North Carolina was third, and New York, which then 
stood fifth, now has double the population of the whole country at 
that date, and several other States have now a population greater 
than the original Union, whose very names were then unheard and 
over whose soil the savage and the buffalo roamed unmolested. 



DEFECTS IN COOSrSTITUTIOlSr OF UNITED STATES. 7 

Steamboats, railroads, gas, electricity (except as a toy in Franklin's 
hands), coal mines, petroleum, and a thousand other things which 
are a part of our lives to-day were undiscovered. 

Corporations, which now control the country and its Government, 
were then so few that not till four years later, in 1791, was the first 
bank incorporated (in New York), and the charter for the second 
bank was only obtained by the subtlety of Aaron Burr, who con- 
cealed the banking privileges in an act incorporating a water com- 
pany — and corporations have had an affinity for water ever since. 

Had the Constitution been perfectly adapted to the needs and 
wishes of the people of that day, we would still have outgrown it. 
Time has revealed flaws in the original instrument, and it was, as 
might be expected, wholly without safeguards against that enormous 
growth of corporations, and even of individuals, in wealth and power, 
which has subverted the control of the Government. 

The glaring defect in the Constitution was that it was not demo- 
cratic. It gave, as already pointed out, to the people — to the gov- 
erned — the selection of only one-sixth of the Government, to wit, one- 
half — by far the weaker half — of the legislative department. The 
other half, the Senate, was made elective at second hand by the 
State legislatures, and the Senators were given not only longer 
terms but greater power, for all presidential appointments and treaties 
were subjected to confirmation by the Senate. 

The President was intended to be elected at a still further remove 
from the people, by being chosen by electors, who, it was expected, 
would be selected by the State legislatures. The President thus was 
to be selected at third hand,. as it were. In fact, down till after the 
memorable contest between Adams, Clay, Crawford, and Jackson, in 
1824, in the majority of the States the presidential electors were 
chosen by the State legislatures, and they were so chosen by South 
Carolina till after the Civil War, and, in fact, by Colorado in 1876. 
The intention was that the electors should make independent choice, 
but public opinion forced the transfer of the choice of electors from the 
legislatures to the ballot box, and then made of them mere figure- 
heads, with no power but to voice the will of the people, who thus 
captured the executive department. That department, with the 
House of Representatives, marks to-day the extent of the share of 
the people in this Government. 

The judiciary were placed a step still further removed from the 
popular choice. The judges were to be selected at fourth hand by a 
President (intended to be selected at third hand) and subject to con- 
firmation by a Senate chosen at second hand. And to make the 
judiciary absolutely impervious to any consideration of the ''consent" 
of the governed," they are appointed for fife. 

It will be seen at a glance that a constitution so devised was intended 
not to express, but to suppress, or at least disregard, the wishes and 
the consent of the governed. It was admirably adapted for what 
has come to pass — the absolute domination of the Government by 
the "business interests," which, controlling vast amounts of capital 
and intent on more, can secure the election of Senators by the small 
constituencies, the legislatures which elect them, and can dictate the 
appointment of the judges, and if they fail in that, the Senate, chosen 
under their auspices, can defeat the nomination. Should the Presi- 
dent favor legislation and the House of Representatives pass the bill, 



/ 



8 DEFECTS IN CONSTITUTION OF "UNITED STATES. 

the Senate, with its majority chosen by corporation influences, can 
defeat it; and if, by any chance, it shall yield to the popular vvall and 
pass the bill, as was the case with the income tax, there remains the 
judiciary, who have assumed, without any warrant, express or im- 
phed, in the Constitution, the power to declare any act unconstitu- 
tional at their own will and witliout responsibility to anyone. 

The people's part in the Government m the choice of the House of 
Representatives, even when reenforced by the Executive, whose elec- 
tion theyhave captured, is an absolute nullity in the face of the Senate 
and the judiciary, in whose selection the people have no voice. This, 
therefore, is the Government of the United States — a government by 
Senate and judges — that is to say, frankly, by whatever power can 
control the selection of Senators and judges. What is that power? 
We know that it is not the American people. 

Let us not be deceived by forms, but look at the substance. Gov- 
ernment rests not upon forms, but upon a true reply to the question, 
"Where does the governing power reside ?" The Roman legions bore 
to the last day of the Empire upon their standards the words, "The 
Senate and the Roman people," long centuries after the real power had 
passed from the curia and the comitia to the barracks of the Pretorian 
Guards, and when there was no will in Rome save that of their master. 
There were still tribunes of the people, and consuls, and a senate, and 
the title of a republic, but the real share of the people in the Roman 
Government was the donation to them of "bread and circuses" by 
their tyrants. 

Years after the victor of Marengo had been crowned Emperor and 
the sword of Austerlitz had become tlie one power in France, the 
French coins and official documents still bore the inscription of 
"French Republic" — "Republique Francaise." 

In England to-day there is a monarchy in form, but we know that 
in truth the real government of England is vested in a single House of 
Parliament, elected by the people, under a restricted suffrage; that 
the real executive is not the King, but the prime minister and his 
cabinet, practically elected by the House of Commons and holding 
office at the will of the majority in that House; that the King has not 
even the veto power, except nominally, since it has not been exercised 
in a single instance for more than 200 years, and that the sole func- 
tion of the House of Lords — a club of rich men representing great 
vested interests — is in the exercise of a suspensive veto (of which the 
King has been deprived), which is exercised only till the Commons 
make up their mind the bill shall pass — when the House of Lords 
always gives way, as the condition upon which their continued exist- 
'ence rests. So in this country we retain the forms of a Republic. We 
still choose our President and the House of Representatives by the 
people; but the real power does not reside in them or in the people. 
It rests with those great "interests" which select the majority of the 
Senate and the judges. 

This being the situation, the sole remedy possible is by amendment 
of the Constitution to make it democratic and place the selection of 
these preponderating bodies in the hands of the people. 
/' First, the election of Senators should be given to the people. Even 
then consolidated wealth will secure some of the Senators; but it 
would not be able, as now, at all times to count with absolute cer- 
tainty upon a majority of the Senate, as its creatures. Five times 



DEFECTS IN CONSTITUTIOlsr OF UNITED STATES. 9 

has a bill proposing such amendment to the Constitution passed the 
House of Kepresentatives by a practically unanimous vote, and each 
time it has been lost in the Senate; but never by a direct vote. It 
has always been disposed of by the chloroform process of referring the 
bill to a committee, which never reports it back, and never will. It 
is too much to expect that the great corporations which control a 
majority of the Senate will ever voluntarily transfer to the people 
their profitable and secure hold upon supreme power by permitting 
the passage of an amendment to elect Senators by the people. The 
only hope is in the alternative plan of amendment, authorized by the 
Constitution, to wit, the call of a constitutional convention upon the 
application of two-thirds of the States, to wit, 30 States. More than 
that number have already instructed in favor of an amendment to 
elect Senators by the people. 

It may be recalled here that in the Convention of 1787 Pennsyl- 
vania did vote for the election of Senators by the people. A strong 
argument used against this was that the farming interests, being the 
largest, would control the House and that the Senate could only be 
given to the commercial interests by making its members elective by 
the legislatures — which was prophetic — though the deciding influence 
was the fear of the small States that if the Senate was elected by the 
people its membership would be based on population. 

It is high time' that we had a constitutional convention, after the 
lapse of near a century and a score of years. The same reasons which 
have time and again caused the individual States to amend their con- 
stitutions imperatively require a convention to adjust the Constitu- 
tion of the Union to the changed conditions of the times and to trans- 
fer to the people themselves that control of the Government which is 
now exercised for the profit and benefit of the ''interests." Those 
interests, with all the power of their money and the large part of the 
press which they own or control, will resist the call of such a conven- 
tion. They will be aided, doubtless, by some of the smaller States who 
may fear a loss of their equal representation in the Senate. But in 
truth and justice it may be that there might be some modification now 
in that respect without injury to the smaller States. There is no 
longer any reason why Delaware or Nevada or Rhode Island should 
have as many Senators as New York or Pennsylvania or Illinois. It 
would be enough to grant to every State having 1,000,000 inhabitants 
or less one Senator, and to allot to each State having over 1,000,000 
inhabitants an additional Senator for every million above 1,000,000 
and for a fractional part if over three-quarters of a million. This, 
while not putting the Senate frankly on the basis of population, would 
remove the dissatisfaction with the present unjust ratio and would 
quiet the opposition to the admission of the new States whose area 
and development entitle them to self-government, but whose popu- 
lation does not entitle them to two Senators. 

The election of President is now made by the people, who have cap- 
tured it, though the Constitution did not intend the people should 
have any choice in naming the Executive. The dangerous and 
unsafe plan adopted in 1787 was changed in consequence of the 
narrowly averted disaster in 1801. But the method in force still 
leaves much to be desired. It readily lends itself to the choice of a 
minority candidate. It is an anomaly that 1,100 votes in New 
York (as in 1884) should swing 70 electoral votes (35 from one can- 



10 DEFECTS IjST CONSTITUTION OF UNITED STATES. 

didate to the other) and thus decide the result. The consequence is 
that while, nominally, any citizen of the Kepublic is eligible to the 
Presidency, only citizens of two or three of the larger States, with 
doubtful electoral votes, are in fact eligible. All others are barred. 
For proof of this look at tJie history of our presidential elections. 
For the first 40 years of the Union the Presidents came from two 
States— Virginia and Massacliusetts. Then there followed a period 
when, the growing West requiring recognition, Tennessee, Ohio, 
and New York commanded the situation for the next 16 years. The 
Mexican War gave us a soldier who practically represented no 
State, and was succeeded by a New Yorker. Then for the only time 
in our history ''off States" had a showing, and Pennsylvania and 
New Hampshire liad their innings. Since then tlie successful candi- 
dates have been again strictly limited to "pivotal States" — New 
York in tlie East and Illinois, Indiana, and Ohio in the W^est. 

This condition is unsatisfactory. The magnetic Blaine, from 
Maine, was defeated, as was Bryan, from Nebraska. Had the former 
hailed from New York and the latter from Illinois the electoral votes 
and influence of those States might have secured their election. 

It would be dangerous and almost a certain provocation of civil 
war to change the election of President to a per capita vote by the 
whole of the Union. Then a charge of a fraudulent vote at any pre- 
cinct or voting place, however remote, might affect the result, and as 
frauds would most likely occur in those States where the majorities 
are largest, as in Pennsylvania or Texas, Ohio or Georgia, a contest 
would always be certain. Wliereas now frauds in States giving large 
majorities, uidess of great enough magnitude to change the electoral 
vote of the whole State, can have no effect. The remedy is, preserving 
the electoral vote system as now and giving the smaller States, as now, 
the advantage of electoral votes to represent their Senators, to divide 
the electoral vote of each State according to the popular vote for 
each candidate, giving each his pro rata of the electoral vote on that 
basis, the odd elector being apportioned to the candidate having the 
largest fraction. Thus, in New York Mr. Blaine would have gotten 
17 electoral votes and Mr. Cleveland IS. Other States would have 
also divided more or less evenly, but the result would be that the 
choice of President would no longer be restricted to two or three 
States, as in our past history, and is likeh^ to be always the case as 
long as the whole electoral vote of two or three large pivotal States 
must swing to one side or other and determine the result. This 
change would avoid the present evil of large sums being spent to cany 
the solid electoral vote of "pivotal" States, for there would cease to 
be "pivotal" States. At the same time this would avoid the open 
gulf into which a per capita ballot by the whole Union would lead us. 
While the electoral vote of a State should be divided pro rata, accord- 
ing to the popular vote for each candidate, it is essential that each 
State should vote as one district, since its boundaries are unchange- 
able. To permit the legislature of each State to divide it into elec- 
toral districts would simplj^ open up competition in the art of gerry- 
mandering. 

By the convention of 1787 the term of the President was originally 
fixed at seven years, and he was made ineligible for reelection. This 
was reduced to four years by a compromise tliat he could be reelected 
without limitation. This was done in the interest of those who 



DEFECTS IN CONSTITUTIOISr OF UNITED STATES. 11 

favored a strong Government and a long tenure. Washington imposed 
a limitation by his example, wliich will not always be binding. An 
ainendment maldng the term six years and the President ineligible to 
reelection has long been desired by a large portion of the public. 
Indeed, when the Constitutional Convention of the Union shall 
assemble, as it must do some day, to remodel our Constitution to fit it 
to face the dangers and conform to the views of the people of this age, 
with the aid of our experience in the past, it is more than probable that 
the powers of the Executive will be more restricted. His powers are 
now greater than those of any sovereign in Europe. The real restric- 
tions upon executive pov^^er at present are not in constitutional provi- 
sions, but in the Senate and judiciary, which often negative the popular 
will, which he represents more accurately than the^^. 

And now we come to the most important of the changes necessary 
to place the Government of the Union in the hands of the people. By 
far the most serious defect and danger in the Constitution is the 
appointment of judges for life, subject to confirmation by the Senate. 
It is a far more serious matter than it was when the Convention of 
1787 framed the Constitution. A proposition was made in the con- 
vention — as we now know from Mr. Madison's Journal — that the 
judges should pass upon the constitutionality of acts of Congress. 
Tliis was defeated June 5, receiving the vote of onl}' two States. It 
was renewed no less than tliree times, i. e., on June 6, July 21, and 
finally again for the fourth time on August 15 ; and though it had the 
powerful support of Mr. Madison and Mr. James Wilson, at no time 
did it receive the votes of more than three States. On this last occa- 
sion (August 15) Mr. Mercer thus summed up the thought of the con- 
vention: He disapproved of the doctrine that the judges, as expos- 
itors of the Constitution, should have authority to declare a law void. 
He thought laws ought to be well and cautious!}^ made, and then to be 
incontrovertible. 

Prior to the convention, the courts of four States — New Jersey, 
Rhode Island, Virginia, and North Carolina — ^had expressed an. opin- 
ion that they could hold acts of the legislature unconstitutional. 
This was a new doctrine never held before (nor in any other country 
since) and met with strong disapproval. In Rhode Island the move- 
ment to remove the offending judges was stopped only on a suggestion 
that they could be "dropped" by the legislature at the annual elec- 
tion, which was done. The decisions of these four State courts were 
recent and well known to the convention. Mr. Madison and Mr. 
Wilson favored the new doctrine of the paramount judiciary, doubt- 
less deeming it a safe check upon legislation, since is was to be oper- 
ated only by lawyers. They attempted to get it into the Federal 
Constitution in its least objectionable shape, the judicial veto before 
final passage of an act, which would thus save time and besides would 
enable the legislature to avoid the objections raised. But even in 
this diluted form, and though four times presented by these two very 
able and influential members, this suggestion of a judicial veto at no 
time received the votes of more than one-fourth of the States. 

The subsequent action of the Supreme Court in assuming the power 
to declare acts of Congress unconstitutional was without a line in 
the Constitution to authorize it, either expressly or by implication. 
The Constitution recited carefully and fully the matters over which 
the courts should have jurisdiction, and there is nothing, and after 



12 DEFECTS IN CONSTITUTION OF UNITED STATES. 

the above vote four times refusing jurisdiction there could be nothing, 
indicating any power to declare an act of Congress unconstitutional 
and void. 

Had the convention given such power to the courts, it certainly 
would not have left its exercise final and unreviewable. It gave the 
Congress power to override the veto of the President, though that 
veto was expressly given, thus showing that in the last analysis the 
will of the people, speaking through the legislative power, should 
govern. Had the convention supposed the courts would assume such 
power, it woidd certainly have given Congress some review over judi- 
cial action and certainly would not have placed the judges irre- 
trievably beyond ''the consent of the governed" and regardless of the 
popidar will by making them appointive, and, further, clothing them 
with the undemocratic prerogative of tenure for life. 

Such power does not exist in any other country, and never has. It 
is therefore not essential to our security. It is not conferred by the 
Constitution; but, on the contrary, the convention, as we have seen, 
after the fullest debate, four times, on four several days, refused by a 
decisive vote to confer such power. The judges not only have never 
exercised such power in England, where there is no written constitu- 
tion, but they do not exercise it in France, Germany, Austria, Den- 
mark, or in any other country which, like them, has a written con- 
stitution. 

A more complete denial of popular control of this Government could 
not have been conceived than the placing of such unreviewable power 
in the hands of men not elected by the people and holding office for 
life. The legal-tender act, the financial policy of the Government, 
was invalidated by one court and then validated by another, after a 
change in its personnel. Then the income tax, which had been held 
constitutional by the court for a hundred years, was again so held, 
and then by a sudden change of vote by one judge it was held uncon- 
stitutional, nullified, and set at naught, though it had passed b}^ a 
nearly unanimous vote both Houses of Congress, containing many 
lawyers who were the equals, if not the superiors, of the vacillating 
judge, and had been apj^roved by the President and voiced the wdl of 
the people. This was all negatived (without any warrant in the Con- 
stitution for the court to set aside an act of Congress) by the vote of 
one judge; and thus $100,000,000 and more of annual taxation was 
transferred from those most able to bear it and placed u])on the backs 
of those who already carried more than their fair share of the burdens 
of government. Under an untrue assumption of authority given 
by 39 dead men one man nullified the action of Congress and the 
President and the will of 75,000,000 of living people, and in the 13 
years since has taxed the property and labor of the country, by his 
sole vote, $1,300,000,000, which Congress, in comphance with the 
public will and relying on previous decisions of the court, had decreed 
should be paid out of the excessive incomes of the rich. 

In England one-third of the revenue is derived from the superflu- 
ities of the very wealthy by the lev}^ of a graduated income tax and 
a graduated inheritance tax, increasing the per cent with tlie size of 
the income. The same system is in force in all other civilized coun- 
tries. In not one of them would the hereditary monarch venture to 
veto or declare null such a tax. In this country alone the people, 
speaking through their Congress and with the approval of their 



DEFECTS IN CONSTITUTION OF UNITED STATES. 13 

Executive, can not put in force a single measure of any nature what- 
ever with assurance that it shall meet with the approval of the courts ; 
and its failure to receive such approval is fatal, for, unlike the veto 
of the Executive, the unanimous vote of Congress (and the income 
tax came near receiving such vote) can not prevail against it. Of 
what avail shall it be if Congress sliall conform to the popular demand 
and enact a "rate-regulation" bill and the President shall approve 
it if five lawyers, holding office for life and not elected by the people, 
shall see fit to destroy it, as they did the income-tax law? Is such a 
government a reasonable one and can it be longer tolerated after 120 
years of experience have demonstrated the capacity of the people for 
self-government ? If five lawyers can negative the will of 100,000,000 
of men, then the art of government is reduced to the selection of those 
five lawyers. 

A power without limit, except in the shifting Adews of the court, 
lies in the construction placed upon the fourteenth amendment, which 
passed, as everyone knows, solely to prevent discrimination against 
the colored race, has been construed by the court to confer upon it 
jurisdiction to hold any provision of any statute whatever "not due 
process of law." This draws the whole body of the reserA^-ed rights 
of the States into the maelstrom of the Federal courts, subject only 
to such forbearance as the Federal Supreme Court of the day or in 
any particular case may see fit to exercise. The limits between State 
and Federal jurisdiction depend upon the views of five men at any 
given time, and we have a government of men and not a government 
of laws, prescribed beforehand. 

At first the court generously exempted from its veto the police 
power of the several States. But since then it has proceeded to set 
aside an act of the Legislature of New York restricting excessive 
hours of labor, which act had been sustained by the highest court in 
that great State. Thus labor can obtain no benefit from the growing 
humanity of the age, expressed by the popular will in any State, if 
such statute does not meet the views of five elderly lawyers, selected 
by influences naturally antagonistic to the laboring classes and whose 
training and daily associations cei'tainly can not incline them in favor 
of restrictions upon the power of the employer. 

The preservation of the autonomy of the scA^eral States and of local 
self-goA^ernment is essential to the maintenance of our liberties, which 
would expire in the grasp of a consolidated despotism. Nothing can 
save us from this centripetal force but the speedy repeal of the four- 
teenth amendment, or a recasting of its language in terms that no 
future court can misinterpret it. 

The vast political power now asserted and exercised by the court to 
set aside public policies, after their full determination I)y Congress, 
can not safely be left in the hands of any body of men without super- 
vision or control by any other authority whatever. If the President 
errs, his mandate expires in four years, and his ])arty as well as him- 
self is accountable to the people at the ballot box for his steward- 
ship. If Members of Congress err, they, too, must account to their 
constituents. But the Federal judiciary hold for life, and though 
popular sentiment should change the entire ])ersonnel of the other two 
great departments of government, a whole generation must pass away 
l)efore the people could get control of the judiciary, which possesses 
.an irresponsible and unrestricted A^eto upon the action of the other 



14 DEFECTS IX CONSTITUTION OF UNITED STATES. 

departments — irresponsible because impeachment has become impos- 
sible, and if it were possible it could not be invoked as to erroneous 
decisions unless cori'uption were shown. 

The control of the policy of government is thus not in the hands 
of the people, but in the power of a small body of men not chosen by 
the people and holding for life. In many cases wliich might be 
mentioned, had the court been elective, men not biased in favor of 
colossal wealth would have filled more seats upon the bench, and if 
there had been such decision as in the income-tax case, long ere this 
under the tenure of a term of years, new incumbents would have 
been chosen, who, returning to the former line of decisions, would 
have upheld the right of Congress to control the financial policy of 
the Government in accordance with the will of the people of this day 
and age, and not according to the shifting views which the court has 
imputed to language used by the majority of the 55 men who met in 
Philadelphia in 1787. Such methods of controlling the policy of a 
Government are no whit more tolera,ble than the conduct of the augurs 
of old who gave the permission for peace or war, for battle or other 
public movements, by declaring from the flight of birds, the inspec- 
tion of the entrails of fowls, or other equally wise devices, that the 
omens were lucky or unlucky — the rules of such divination being in 
their own breasts and hence their decisions beyond remedy. 

It may be that this power in the courts, however illegally grasped 
originally, has been too long acquiesced in to be now questioned. If 
so, the only remedy which can be applied is to make the judges elec- 
tive and for a term of years, for no people can permit its will to be 
denied and its destinies shaped by men it did not choose, and over 
whose conduct it has no control, by reason of its having no power to 
change them and select other agents at the close of a fixed term. 

Every Federal judgeship below the Supreme Court can be abolished 
by an act of Congress, since the power which creates a Federal dis- 
trict or circuit can abolish it at will. If Congress can abolish one, it 
can abolish all. Several districts have from time to time been abol- 
ished, notably two in 1801 ; and we know that the 16 circuit judges 
created by the judiciary act of 1801 were abolished 18 m-onths later. 

It is true that under the stress of a great public sentiment every 
United States district and circuit judge can be legislated out of office 
by a simple act of Congress and a new system recreated with new 
judges. It is also true, as has been pointed out by distinguished law- 
yers, that while the Supreme Court can not be thus abolished, it 
exercises its appellate functions "with such exceptions and under 
such regulations as Congress shall make" (Const., Art. Ill, sec. 2), 
and as Congress enacted the judiciary act of 1789, it has often amended 
it and can repeal it. Judge Marshall recognized this in Marbury v. 
Madison, in which case in an obiter opinion he had asserted the power 
to declare an act of Congress unconstitutional, for he wound up by 
refusing the logical result, the issuing of the mandamus sought, 
because Congress hatl not conferred jurisdiction upon the Supreme 
Court to issue it. 

In 1831 the attempt was made to repeal section 25 of the judiciary 
act of 1789, by virtue of which writs of error lay to the State supreme 
courts in certain cases. Though the section was not repealed, the 
repeal was supported and voted for by both Henry Clay, James K. 
Polk, and other leaders of both of the great parties of that day. But 



DEFECTS IN CONSTITUTION OF UNITED STATES. 15 

what is needed is not the exercise of these powers which Congress 
undoubtedly possesses and in an emergency will exercise, but a con- 
stitutional revision by which the Federal judges, like other public 
servants, shall be chosen by the people for a tern of years. 

It may be said that the Federal judges are now in office for life and 
it would be unjust to dispossess them. So it was with the State judges 
in each State when it changed from life judges to judges elected by the 
people; but that did not stay the hand of a much needed reform. 

It must be remembered that when our Federal Constitution was 
adopted in 1787, in only one State was the governor elected by the 
people, and the judges in none, and that in most if not all the States 
the legislature, especially the senate branch, was chosen by a re- 
stricted suffrage. The schoolmaster was not abroad in the land, the 
masses were illiterate and government by the people was a new experi- 
ment and property holders were afraid of it. The danger to property 
rights did not come then, as now, from the other direction — from the 
corporations and others holding vast accumulations of capital and by 
their power crushing or threatening to crush out all those owning 
modest estates. 

In the State governments the conditions existing in 1787 have long- 
since been changed. In all the States the governor and the members 
of both branches of the legislature have long since been made elective 
by manliood suffrage. In all the 45 States save 4 — Delaware, Massa- 
chusetts, New Hampshire, and Rhode Island — the judges now hold 
for a term of years, and in three of these they are removable, as in 
England, upon a majority vote of the legislature, thus preserving a. 
supervision of their conduct which is utterly lacking as to the Federal 
judiciary. In Rhode Island the judges were thus dropped summarily 
once when they had held an act of the legislature invalid. In 33 
States the judges are elected by the people, in 5 States by the legisla- 
ture, and in 7 States they are appointed by the governor, with the 
consent of the senate. Even in England the judges hold office sub- 
ject to removal upon the vote of a bare majority in Parliament — ■ 
though there the judges have never asserted any power to set aside an 
act of Parliament. There the will of the people, when expressed 
through their representatives in Parliament, is final. The King cart 
not veto it, and no judge has ever dreamed he had power to set it 
aside. 

There are those who believe and have asserted that corporate 
wealth can exert such influence that even if judges are not actually 
selected by the great corporations, no judge can take his seat upoik 
the Federal bench if his nomination and confirmation are opposed 
by the allied plutocracy. It has never been charged that sucK 
judges are corruptly influenced. But the passage of a judge from 
the bar to the bench does not necessarily destroy his prejudices or 
his predilections. If they go upon the bench knowing that this 
potent influence, if not used for them, at least withheld its opposition 
to their appointment or their confirmation, and usually with a 
natural and perhaps unconscious bias from having spent their lives 
at the bar in advocacy of corporate claims, this will unconsciously, 
but eftectively, be reflected in the decisions they make. Haying 
attempted as lawyers to persuade courts to view debated questions 
from the standpoint of aggregated wealth, they often end by believing 
sincerely in the correctness of such views, and not unnaturally put 



16 DEFECTS IN CONSTITUTION OF UNITED STATES. 

them in force when in turn they themselves ascend the bench. This 
trend in Federal decisions has been pronounced. Then, too, incum- 
bents of seats upon the Federal circuit and district bench can not be 
oblivious to the influence which procures promotion; and how fatal 
to confirmation by the plutocratic majority in the Senate will be 
the expression of any judicial views not in accordance with the 
^'safe, sane, and sound" predominance of wealth. 

As far back as 1820, Mr. Jefterson had discovered the "sapping 
and mining," as he termed it, of the life-tenure, appointive Federal 
judiciary, owing no gratitude to the people for their appointment 
and fearing no inconvenience from their conduct, however arbitrary, 
in the discharge of such office. In short, they possess the autocratic 
power of absolute irresponsibility. "Step by step, one goes very far," 
says the French proverb. This is true of the Federal judiciary. 
Compare their jurisdiction in 1801, when Marshall ascended the 
bench, and their jurisdiction in 1906. The Constitution has been 
remade and rewritten by the judicial glosses put upon it. Had it 
been understood in 1787 to mean what it is construed to mean 
to-day, it is safe to say not a single State would have ratified it. 

An elective judiciary is less partisan, for in many States half the 
judges are habitually taken from each party and very often in other 
States the same men are nominated by both parties, as notably the 
recent selection by a Republican convention of a Democratic suc- 
cessor to Judge Parker. The organs of plutocracy have asserted that 
in one State the elective judges are selected by the party boss. But 
they forget that if that is true he must in such a condition of aft'airs 
name the governor too, and through the governor he would select the 
appointive judges. If the people are to be trusted to select the exec- 
utive and the legislature, they are fit to select the judges. The people 
are wiser than the appointing power which, viewing judgeships as 
patronage, has with scarcely an exception filled the Federal bench 
with appointees of its own party. Public opinion, which is the cor- 
ner stone of free government, has no place in the selection or super- 
vision of the judicial augurs, who assume power to set aside the will 
of the people when declared by Congress and the Executive. Wliat- 
ever their method of divination, equally with the augurs of old, they 
are a law to themselves and control events. 

As was said by a great lawyer lately deceased. Judge Seymour D. 
Thompson, in 1891 (25 Am. Law Review, 288): "If the proposition 
to make the Federal judiciary elective instead of appointive is once 
seriously discussed before the people, nothing can stay the growth of 
that sentiment, and it is almost certain that every session of the 
Federal Supreme Court will furnish material to stimulate that 
growth." 

Great aggregations of wealth know their own interests, and it is 
very certain that there is no reform and no constitutional amend- 
ment that they will oppose more bitterly than this. What, then, is 
the interest of all others in regard to it ? 

Another undemocratic feature of the Constitution is that which re- 
quires all Federal officials to be appointed by the President or heads 
of departments. This is a great evil. Overwhelming necessity has 
compelled the enactment of the civil-service law, which has protected 
many thousands of minor officials. But there has been no relief as to 
the 75,000 postmasters. Wlien the Constitution was adopted there 



DEFECTS IN CONSTITUTION OF UNITED STATES. 17 

were only 75 postmasters, and it was contemplated that the President 
or Postmaster General would really appoint. But this constitutional 
provision is a dead letter. The selection of this army of 75,000 post- 
masters, in a large majority of cases, is made by neither, but in the 
unconstitutional mode "of selection by Senator, Member of the House, 
or a political boss. There is no reason why Congress should not be em- 
powered by amendment to authorize the department to lay off the 
territory patronizing each post office as a district in which an election 
shall be held once in four years, at the time a Member of Congress is 
chosen, and by the same machinery, the officer giving bond and being 
subject to the same supervision as now. Thus the people of each lo- 
cality will get the postmaster they prefer, irrespective of the general 
result in the Union, relieving the department at Washington of much 
call upon its time, which can be used for the pubhc interest in some 
better way; and, besides, it will remove from the election of President 
and Members of Congress considerations of public patronage. Elec- 
tions will then more largely turn upon the great issues as to matters 
^f public policy. 
iV'^Another obstruction to the effective operation of the popular will is \ 
\the fact that, though Congressmen are elected in November, they do \ 
xj not take their seats (unless there is a called session) for 13 months, 
yand in the meantime the old Congress, whose policy may have been 
Jrepudiated at the polls, sits and legislates, in any event, till March 4, j 
Mollowing. This surely needs amendment, which fortunately can be / 
jclone by statute. In England, France, and other countries the oldj 
f Parliament ceases before the election, and the new Assembly meets/ 
' at once and puts the popular v/ill into law. 

In thus discussing the defects of the Federal Constitution I have 
but exercised the right of the humblest citizen. Few will deny that 
defects exist. I have indicated what, in my opinion, are the reme- 
dies. As to this, many will differ. If better can be found, let us 
adopt them. But could the matter be more appropriately discussed 
than on the spot where the original Constitution was debated? 

For my part, I believe in popular government. The remedy for 
the halting, halfway popular government which we have is more de- 
mocracy. When someone observed to Mr. Gladstone that the "people 
are not always right," he rephed, ''No; but they are rarely wrong." 
Wiien they are wrong their intelhgence and their interests combine 
to make them correct the wrong. But when rukrs, whether kings or 
life judges, or great corporations, commit an error against the interests 
of the masses, there is no such certainty of correction. 

The growth of this country in population and in material wealth 
has made it the marvel of the ages. 

But what avail the plow or sail, 
Or land or life, if freedom fail. 

The government and the destinies of a great people should always 
be kept in their own hands 

o 

S. Doc. 87, 62-1 2 



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